The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Wednesday, November 30, 2011

Judge Robin S. Rosenbaum is a United States Magistrate Judge for the Southern District of Florida, a position she has held since 2007. From 1998 until her appointment to the bench, Judge Rosenbaum was an Assistant United States Attorney in the same district, where she served as Chief of the Economic Crimes Section in the Fort Lauderdale office beginning in 2002. Before joining the United States Attorney’s Office, Judge Rosenbaum clerked for Judge Stanley Marcus on the United States Court of Appeals for the Eleventh Circuit in 1998, worked as a litigation associate at Holland & Knight from 1996 to 1997, and served as staff counsel at the Office of the Independent Counsel in Washington, D.C. from 1995 to 1996. She began her legal career as a trial attorney at the Federal Programs Branch of the United States Department of Justice from 1991 to 1995. Judge Rosenbaum received her J.D. magna cum laude in 1991 from the University of Miami School of Law and her B.A. in 1988 from Cornell University.

Tuesday, November 29, 2011

“Kleptocracy” is a term used to describe “[a] government characterized by rampant greed and corruption.” The American Heritage Dictionary of the EnglishLanguage 968 (4th ed. 2000); see also New Oxford American Dictionary 963 (3d ed. 2010); Random House Webster’s College Dictionary 724 (2d ed. 1998). To that definition dictionaries might add, as a helpful illustration: “See, for example,Alabama’s Jefferson County Commission in the period from 1998 to 2008.” During those years, five members or former members of the commission that governs Alabama’s most populous county committed crimes involving their “service” in office for which they were later convicted in federal court. And the commission has only five members. One of those five former commissioners who was convicted did not appeal.1 We have affirmed the convictions of three others who did.2 This is the appeal of the fifth one.

Judge Carnes also ends the opinion with a one-word paragraph "Indeed" after quoting the district court on sentencing:

You see, when someone’s elected to a position of trust as an elected official, they don’t have the right . . . they don’t have a right to have a bag . . . at all. It’s not a function of how big the bag is, they just don’t have a rightto have a bag that they can carry around stuff they get from people that are involved with them in this process. And, so, I think a sentence which is 120 months total is appropriate.

In other news, Curt Anderson covers the $2.1 million payment by the feds in the photo editor's anthrax death. Details here.

That's Hugo Rodriguez quoted in this New Times article about the "paralegals" visiting FDC (the federal jail in downtown Miami). More:

But attorneys swear the scam is ongoing. One "discovery room" normally used to discuss trial strategy was recently closed, they say, after guards caught an inmate and a paralegal "discovering" more than legal documents.

Lawyers claim that lax rules have let phony paralegals pamper their narco clients ​"Everyone knows about it," says a private investigator who is familiar with the FDC and asked not to be named. "We call them the 'little hoochie mamas'... They are making a mockery out of the prison system here."

Among the offenses allegedly committed by so-called paralegals: smuggling in a Playboy, feeding alcohol to an inmate by slipping a straw through a grate, and sneaking in $3,000 inside a purse.

In a scene straight out of a porno, one woman was caught on video stripping for an inmate in the jail's Special Housing Unit, attorneys say. The stripper was banned from the FDC.

Money quote from the article:

"If you want some good people-watching, try the FDC," attorney Marc Seitles says. "It certainly beats paying a cover and waiting on lines to get into LIV."

We should treat inmates more humanely (especially first-time non-violent offenders) by letting them have limited internet access and occasional conjugal visits. We should also let them wear their own clothing and eat their own food, like they do in most other countries. There would be lots less violence and abuse. If an inmate messed up, these benefits would be taken away.

Monday, November 28, 2011

Justice Antonin Scalia, the Supreme Court's most outspoken and combative conservative, is not often described as friendly to criminals.

But in recent years, Scalia has led an unusual pro-defendant faction at the high court in reversing convictions for murder, drug dealing, wife beating and drunken driving.

Next up in early December is a Chicago rapist who claims his 6th Amendment right to confront his accusers was violated because prosecutors did not put on the witness stand a lab technician from Maryland who conducted the DNA test that sent him to prison.

This claim might have been a loser even during the court's long-past liberal era. But with the relentless Scalia leading the charge, it may well succeed, a prospect that worries prosecutors and crime lab directors across the nation.

Sometimes, Scalia's insistence on following the "original" Constitution leads to unexpected results. And for him, there are no shades of gray and no halfway measures.

The 6th Amendment to the Constitution says the "accused shall enjoy the right … to be confronted with the witnesses against him." To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those "witnesses" who did not or cannot testify in court. He takes this view even if the witness is dead.

Three years ago, Scalia led the court in reversing the murder conviction of a Los Angeles man who shot and killed his girlfriend. A police officer testified the victim had reported that Dwayne Giles threatened to kill her. Scalia said that testimony violated Giles' rights because he could not confront or cross-examine her.

"We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding," Scalia said for 6-3 majority. This went too far for liberal Justices John Paul Stevens and Stephen G. Breyer.

Tuesday, November 22, 2011

Your staff does not want to hang out with you. Not even her, the secretary who you think loves you and thinks your wife is awesome for giving her those stupid baskets of bath salts for Christmas. Your staff wants two things for the holidays — time off and money. I know, you think it’s cool to take them to that great steakhouse you go to three times a month, but is it really fun to watch them quietly and uncomfortably drool at a restaurant they’ve never been to and couldn’t afford unless you were paying for it?

The happiest I ever saw the staff in my office? The Friday before Christmas they arrived at work, were given gift cards, and told they could leave at noon and spend the rest of the afternoon shopping. Think about it — money and getting away from you sooner than expected — it makes you the hero.

Thursday, November 17, 2011

A routine patrol by police on Wednesday on Boynton Beach’s Intracoastal Waterway to educate boaters about the start of manatee season led to the discovery of nearly 1,300 pounds of marijuana valued at more than $1 million. As Boynton Beach Police Marine Unit Officers were patrolling the Intracoastal near the Boynton inlet, they observed a 30-foot center console boat heading north at a slow speed with two men aboard. The boat struck two sand bars, and one of its outboard engines was tipped up and not running. The officers headed toward the boat, which docked at the ramp in Harvey J. Oyer Jr., Boat Club Park. The defendants supplied the officers with Florida driver licenses, but could not produce valid registration for the boat. After the officers obtained verbal consent to go aboard, the defendants fled on foot. They were quickly apprehended after a short foot pursuit by Marine Interdiction Agents from U.S. Customs and Border Protection who were in the immediate vicinity.

Meantime, the feds are investigating state police shootings. From the AP:

The U.S. Justice Department launched a civil rights investigation Thursday into whether Miami police officers engaged in a pattern of excessive use of deadly force in the fatal shootings of seven African-American suspects over an eight-month span.

Thomas Perez, assistant attorney general for civil rights, and Miami U.S. Attorney Wifredo Ferrer said the probe will focus not on the individual officers but on whether the Miami Police Department's policies and practices on use of force led to violations of constitutional rights. The investigation is not criminal in nature.

"We're looking at systems. We're not looking at individual culpability," Perez told reporters. "We will follow the facts where the facts lead us. We will peel the onion to its core."

The shootings in inner-city Miami, from July 2010 to February 2011 and including two others that were not fatal, sparked outrage in the African-American community and led to protests at City Hall. The NAACP and American Civil Liberties Union, among others, demanded a federal investigation.

The former police chief, Miguel Exposito, defended the shootings as justified and said they resulted from confrontations caused by more aggressive police tactics in high-crime areas plagued by gangs. Exposito was fired in September for disobeying orders from the city manager, but the uproar over the shootings was a factor in his ouster.

In a written statement Thursday, Exposito said during his tenure people in many inner-city neighborhoods were demanding action against crime and gangs, leading him to double to 130 the number of tactical officers focused on those areas. Exposito said crime went down as a result.

"I trust that this is not an attempt by the U.S. attorney's office to politicize what should otherwise be an apolitical process," Exposito said.

A defendant convicted of distribution of child pornography is subject to a 5-level enhancement under § 2G2.2(b)(3)(C) of the sentencing guidelines if thedistribution was to a minor. The defendant in this case distributed childpornography to an unidentified person, not connected with law enforcement, whoconvinced him that she (or he) was a minor. The district court applied thedistribution to a minor enhancement after concluding that the actual age of therecipient, which has never been determined in this case, does not matter so long asthe defendant thought that the recipient was a minor. In doing so, the courtextended the reasoning of some of our decisions involving fictitious minorscreated by law enforcement. Regardless of what we said in those other casesinvolving different facts and different guidelines provisions, we reach a differentconclusion because the definition of “minor” in the application note to § 2G2.2convinces us that here it is more than just the thought that counts.

Monday, November 14, 2011

The NY Times explains how discovery and sentencing are broken in the criminal justice system. But this is old news, no?

On Brady:

The current Brady rule requires prosecutors to make two judgments: Is evidence favorable to the defendant? If so, is it likely to affect a decision about guilt or punishment? Too often, prosecutors avoid disclosing evidence by answering no to the second question.

In ruling on the Smith case, the court should refine the Brady rule by eliminating the second question and requiring that prosecutors hand over all favorable evidence. Let a judge or jury weigh its importance.

On Sentencing:

The racial disparities in sentencing are also stark. In some cases, mandatory minimums can be reduced for offenders if the crime did not involve violence or a gun. But most African-American drug offenders convicted of a crime carrying a mandatory minimum sentence could not meet these and other requirements: only 39 percent qualified for a reduction compared with 64 percent of whites.

The report notes that inequitable sentencing policies “may foster disrespect for and lack of confidence in the federal criminal justice system.” Not “may.” Given the well-documented unfairness, Congress needs to rescind all mandatory minimum sentences.

Wednesday, November 09, 2011

The name of the second woman to say publicly that she was harassed by GOP presidential contender Herman Cain may ring bells with Miami Herald readers. Karen Kraushaar was a spokeswoman for the then-Immigration and Naturalization Service during the Elian Gonzalez custody battle in late 1999 and early 2000.Kraushaar was one of the two woman who spoke to Politico for the Oct. 30 story detailing complaints by female employees who worked for Cain at the National Restaurant Association. She and another employee "had complained about Cain’s behavior to colleagues and senior officials at the NRA, and both women left the trade group with a cash settlement," Politico reported. Kraushaar's settlement was about $45,000, Politico reported.

According to several published reports, Kraushaar, 55, heads up communications for a bureau within the IRS. Although many news outlets were aware of her identity, they did not disclose it until the iPad-only publication The Daily revealed it Tuesday. Kraushaar told both Politico and the Washington Post that she would be willing to join together for a press conference with the other three women accusing Cain of harassment. Only one of the other women has so far come forward publicly.

"I am interested in a joint press conference for all the women where we would all be together with our attorneys and all of these allegations could be reviewed as a collective body of evidence,” Kraushaar told The Washington Post Tuesday

In other news, the SCOTUS Blog folks seem to think that after hearing oral argument, the Supremes will say that you need a warrant before GPS tracking. But it doesn't look like the defense lawyer did a great job (via Forbes):

When Jones’s lawyer came up to argue, it was a little like watching 9 cats play with an injured mouse that they felt pity for. A criminal defense attorney who has never argued before the Supreme Court before, Stephen Leckar focused solely on the unreasonableness of the police putting a tracking device on his client’s property without a warrant and refused to indulge the Supreme Court’s questions about the pervasiveness of the monitoring itself. When one justice asked whether this would have been a reasonable act by police if they put the tracker on the license plate of the car (which is owned by the State) rather than the underbelly of the Jeep, Leckar actually said yes. Justice Scalia jumped in to help him out, saying that a driver gives the government the right to put a license plate on a car, not a tracking device on their car.

Justice Kennedy asked whether it would be acceptable if the DC police had tracked Jones for a month with a team of agents following him rather than doing it with a tracking device. “We’re not asking for the police to be less effective,” he replied. “But GPS trackers greatly expand what they can do.”

Yikes. Apparently the advocacy in the High Court this week hasn't been great. Here's SCOTUSBlog on a prosecutor's attempt:

There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles. It is a heavy burden for a lawyer from that oft-criticized office to mount any defense of its prosecutions, but Andrieu repeatedly found ways to botch virtually every point as she argued Smith v. Cain (docket 10-8145).

***

The aggressive exchanges were getting to Andrieu, and the phrase “I’m sorry” began appearing regularly in her answers, as she suggested, now and then, that she had misunderstood the questions. As her argument was winding down, Justice Elena Kagan leaned forward and asked: “Ms. Andrieu, did your office ever consider just confessing error in this case?” Stunned, the prosecutor said: “I’m sorry?”Kagan repeated: “Did your office ever consider just confessing error in this case? You’ve had a bunch of time to think about it. Do you know? We took cert a while ago. I’m just wondering whether you’ve ever considered confessing error.” The prosecutor answered: “Your Honor, we believe that we have an argument that these statements of Larry Boatner are not material.”

It only got worse for Andrieu. Justice Antonin Scalia suggested that the prosecutor “stop fighting as to whether it should be turned over. Of course it should have been turned over…Why don’t you give that up?” The prosecutor again tried, astonishingly, to make one more effort to rehabilitate witness Boatner’s credibility.

At that point, it seemed that nothing more could embarrass the New Orleans prosecutor. But Justice Sotomayor then brought up the “serious accusations against the practices of your office, not yours in particular but prior ones. It is disconcerting to me that when I asked you the question directly should this material have been turned over, you gave an absolute no.” Andrieu weakly suggested that she had misunderstood the question.

But Sotomayor pressed on: “It is somewhat disconcerting that your office is still answering equivocally on a basic obligation as one that requires you to have turned these materials over, whether it caused harm or not.” Andrieu still did not seem to understand. She said that “today we turn all of this over….It should have been turned over. I guess what I was addressing or attempting to address was the materiality prong of Brady.”

Monday, November 07, 2011

1. The Supreme Court will hear the GPS case tomorrow. Really interesting issues. SCOTUS Blog has all the news and analysis.

2. Speaking of SCOTUS Blog, there is an excellent interview of Justice Stevens posted there. His former clerk Jeffrey Fisher asks some intriguing questions:

Question: Turning to the different chapters of the book, one of the things that leaps out to me are the different internal procedures the Court has used over the years. For example, you mention that when you were a law clerk under Chief Justice Vinson, the Court’s conferences [at which the Justices cast their initial votes on cases and vote on cert. petitions] ran differently than they do now. Back then, there was a rule that everybody had a chance to speak once before anyone voted. Now, by contrast, Justices vote in conjunction with making their initial comments. Do you think that difference matters in terms of outcomes?

Justice Stevens: I think there might well be cases in which the outcome could be affected. I remember debating this with Byron White, among others, who said, “Well really the vote is never firm until the whole conference is over — in fact until the opinion is released.” And, as you know, votes change from time to time.

But I do think that the old model tends to give the junior Justice a better opportunity to convince more senior members of the Court if everybody has withheld his or her vote until everybody has had something to say. It just seems to me it’s a better way to proceed. And as I think I say in the book, Bill Rehnquist and I used to sit next to each other in the conference when I was a junior Justice and he was next most junior, and we both raised it once or twice, and he felt the same way then. But he became Chief, and he changed his view.

Question: What do you think changed his view?

Justice Stevens: He became Chief.

Question: He wanted to vote first, do you think?

Justice Stevens: I think — that’s right, he recognized the fact that the order of precedence may have an impact.

Federal authorities are concerned about new research showing U.S. prisons are vulnerable to computer hackers, who could remotely open cell doors to aid jailbreaks.

The Federal Bureau of Prisons is “aware of this research and taking it very seriously,” spokesman Chris Burke told The Washington Times.

Mr. Burke was reacting to research by private experts who found that the security systems in most American prisons are run by computer software vulnerable to hackers.

“You could open every cell door, and the system would be telling the control room they are all closed,” said John J. Strauchs, a former CIA operations officer who helped develop a cyber-attack on a simulated prison computer system and described it at a hackers’ convention in Miami last week.

The security systems in most American prisons are run by special computer equipment called industrial control systems, or ICS. They are also used to control power plants, water treatment facilities and other critical national infrastructure. ICS has increasingly been targeted by hackers because an attack on one such system successfully sabotaged Iran’s nuclear program in 2009.A malicious cyber-intruder could “destroy the doors,” by overloading the electrical system that controls them, locking them permanently open, said Mr. Strauchs, now a consultant who has designed security systems for dozens of state and federal prisons..

Hackers could “shut down secure communications” through the prison intercom system and crash the facility’s closed-circuit television system, blanking out all the monitors, he added.

4. Should those who view child porn on the internet get the same sentence (life) as murderers? The NY Times examines that question here:

A circuit court judge in Florida clearly thinks so: On Thursday, he sentenced Daniel Enrique Guevara Vilca, a 26-year-old stockroom worker whose home computer was found to contain hundreds of pornographic images of children, to life in prison without the possibility of parole.

But the severity of the justice meted out to Mr. Vilca, who had no previous criminal record, has led some criminal justice experts to question whether increasingly harsh penalties delivered in cases involving the viewing of pornography really fit the crime. Had Mr. Vilca actually molested a child, they note, he might well have received a lighter sentence.

“To me, a failure to distinguish between people who look at these dirty pictures and people who commit contact offenses lacks the nuance and proportionality I think our law demands,” said Douglas Berman, a law professor at Ohio State University, who highlighted Mr. Vilca’s case on his blog, Sentencing and Law Policy.

Sexual offenses involving children enrage most Americans, and lawmakers have not hesitated to impose lengthy prison terms for offenders. In Florida, possession of child pornography is a third-degree felony, punishable by up to five years in prison. Mr. Vilca was charged with 454 counts of possession, each count representing one image found on the computer.

5. Can police set up a fake cell phone tower to get information from your phone without a warrant? Via Wired:

Federal authorities used a fake Verizon cellphone tower to zero in on a suspect’s wireless card, and say they were perfectly within their rights to do so, even without a warrant.

But the feds don’t seem to want that legal logic challenged in court by the alleged identity thief they nabbed using the spoofing device, known generically as a stingray. So the government is telling a court for the first time that spoofing a legitimate wireless tower in order to conduct surveillance could be considered a search under the Fourth Amendment in this particular case, and that its use was legal, thanks to a court order and warrant that investigators used to get similar location data from Verizon’s own towers.

The government is likely using the argument to avoid a court showdown that might reveal how stingrays work and open debate into the tool’s legality.

Stingrays spoof a legitimate cellphone tower in order to trick nearby cellphones and other wireless communication devices into connecting to the tower, as they would to a real cellphone tower. When devices connect, stingrays can see and record their unique ID numbers and traffic data, as well as information that points to a device’s location. To prevent detection by suspects, the stingray sends the data to a real tower so that traffic continues to flow.

By gathering the wireless device’s signal strength from various locations, authorities can pinpoint where the device is being used with much more precision than they can get through data obtained from the mobile network provider’s fixed tower location.

If a plaintiff and a defendant agree to a civil settlement, judges generally do not interfere. Why, then, should they in criminal cases (especially if judges are supposed to be umpires as Chief Justice Roberts has commented)?

U.S. District Judge Cecilia Altonaga gave the Guilarte sisters — who fled to Latin America in 2007 when they learned they were under federal investigation — five more years than prosecutors and defense attorneys had agreed on in their plea agreements, which charged a pair of healthcare-fraud and money-laundering conspiracies.

The judge said her initial intentions were to sentence the sisters to maximum prison terms — 30 years — but she was “tempered” by the disparity with lower sentences already imposed on other defendants in the Caridads’ case and related Detroit investigations.

The Guilarte sisters, who were indicted in Detroit in 2009, asked to have their case transferred to their hometown in Miami after they fled to Venezuela and were arrested in Colombia earlier this year. Miami is widely recognized as the nation’s Medicare fraud capital, where sentences keep getting stiffer and stiffer.

“We are tired of seeing the brazen, callous manner with which countless people defraud our Medicare system,” Altonaga declared. “We must stop the epidemic. ... Both of you took what you learned in South Florida and exported it to Michigan.”

Altonaga reminded Caridad, 54, and Clara, 57, that the United States welcomed both with “open arms” from Communist Cuba and that they returned the privilege by stealing millions from the U.S. government’s healthcare program for the elderly and disabled.

The Justice Department said the sisters — Caridad is a legal permanent resident, Clara a naturalized U.S. citizen — personally pocketed $3.8 million from their HIV-therapy scam in Detroit but none of that money has been recovered. Both sisters apologized to the judge and U.S. government, saying they “must pay” for their theft.

But the judge didn’t buy it, saying at one point to Clara: “Even though you say you must pay, I have every conviction you will not pay.”

I have never seen a judge go lower than a joint recommendation of the parties; only higher. But maybe I'm missing something. Any thoughts?

Burson Augustin, Stanley Grant Phanor, Patrick Abraham, RotschildAugustine, and Narseal Batiste (collectively, “Appellants”) were all convicted of(1) conspiracy to provide material support to a Foreign Terrorist Organization (AlQaeda) by agreeing to provide personnel (including themselves) to work under AlQaeda’s direction and control, knowing that Al Qaeda has engaged or engages interrorist activity, in violation of 18 U.S.C. § 2339B; and (2) conspiracy to providematerial support by agreeing to provide personnel (including themselves),knowing and intending that they were to be used in preparation for and in carryingout a violation of 18 U.S.C. §§ 844(f)(1) and (i), and to conceal and disguise thenature, location, source, and ownership of such material support, all in violation of18 U.S.C. § 2339A. Abraham and Batiste were also convicted of conspiracy tomaliciously damage and destroy by means of an explosive a building leased to anagency of the United States (the FBI) and a building used in interstate and foreigncommerce (the Sears Tower), all in violation of 18 U.S.C. § 844(n).1 Additionally,Batiste was convicted of conspiracy to levy war against the Government of theUnited States and to oppose by force the authority thereof in violation of 18U.S.C. § 2384.

Appellants now appeal their convictions, raising six issues. First, Batisteand Augustine challenge the district court’s order granting in part thegovernment’s motion to strike portions of the indictment as surplusage. Second,Augustin, Phanor, and Augustine each challenge the sufficiency of the evidencesupporting their convictions. Third, Augustin argues that the government’sinvolvement in the criminal scheme was outrageous and therefore violated the DueProcess Clause of the Fifth Amendment. Fourth, Batiste and Abraham challengeseveral of the district court’s evidentiary rulings relating to the admissibility of lay and expert testimony. Fifth, Batiste argues that limitations on his cross examination of witnesses resulted in cumulative error requiring a new trial. Sixth, all of the appellants challenge the district court’s dismissal of a juror for refusing to follow the court’s instructions on the law. After careful review of the record and the parties’ briefs, and after having had the benefit of oral argument, weaffirm.

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.